- On one side the dynamic ecology of oceans provides universal food security and on the other side theutmost economical but faster mode of carriage is yet by sea; it is not only economical but profitable too, by improving wealth circulation, therefore, waterways are historically proven high-volume modes of trade transportation for all destinations. Soft but strong waves of water carry about 90% of global cargo bringing prosperities and endeavours to the world. The demand for global freight is vehemently increasing and maritime trade volume is expected to be three times more by 2050. Maritime law is important to ensure the safety and efficiency of global trade and transportation. It provides direction for resolving disputes and protecting the interests of all parties involved in shipping activities.
- A number of international laws that prevail to regulate maritime activities are not always consistent across different countries and regions, and this can lead to challenges for shipping companies and policymakers. International Conventions, treaties, municipal laws, customary laws, and regulations are the source of this law. The maritime law includes Admiralty Jurisdiction, Shipping contracts, Carriage of goods by sea, Marine Insurance, Maritime collisions and accidents, and Marine environmental protection. Municipal laws have a significant role too in the dominance of the maritime domain, as each country has jurisdiction over the waters adjacent to its coasts. States establish their own law to regulate maritime activities, including shipping, fishing, and resource extraction. Whereas ports and harbors’ have their own regulations for specific activities and movement of ships and cargo handling.
- When an international dispute arises out of a maritime contract or incident, it is necessary to consider at the outset which law applies to the dispute, which court or tribunal has jurisdiction to determine the dispute on its merits, whether there is any time bar and whether the claimant can obtain security for its claim. Many maritime contracts contain express governing laws and jurisdiction clauses. It is necessary to establish which law governs those rights and obligations. The issue of jurisdiction may also be of great tactical significance as there may be more than one court which has jurisdiction to determine the dispute and then the claimant must make sure that it commences proceedings in the jurisdiction which is most advantageous to it.
- United Nations Convention on the Law of the Sea (UNCLOS) was adopted in 1982 and has been ratified by more than 168 countries. UNCLOS lays down rules for using the world’s oceans, including navigational rights, maritime boundaries, environmental protection, and managing marine resources. Municipal laws have a significant role in the dominance of the maritime domain, as every country has jurisdiction over the waters adjacent to its coasts. States establish laws regulating maritime activities, including shipping, fishing, and resource extraction. Whereas ports and harbors’ have their own regulations for specific activities and movement of ships and cargo handling.
- Shipping covers the transportation of goods and services through different modes of transport including by sea, air and land. Thus, disputes & conflicts eventually have to be resolved through personal Meetings, negotiation, Mediation, Mediation, Arbitration, and litigation. Breach of contract, cargo damage, vessel collision, pollution, piracy, and many other factors may be the reason for disputes. Parties involved may suffer colossal financial and reputational losses, therefore, a forceful legal framework is required to resolve such disputes where Pakistan is lacking. Previously shipping disputes and arbitrations were governed by Admiralty Courts Act 1861 which was insufficient law to address modern shipping disputes and arbitrations in Pakistan. Nevertheless, the Admiralty Jurisdiction of High Court Ordinance,1980 was promulgated by Pakistan yet it lacks dispute resolution. The need for strategic legislation to cater to the changing dynamics of the shipping industry exists in the field.
- The terms arbitration and mediation are commonly used in international shipping disputes which should be included in new legislation for “alternative dispute resolution mechanisms” besides the best standards under practice, should also be incorporated such as the United Nations Convention on Contracts for the International Sale of Goods (CISG) adopted in 1980 and the International Chamber of Commerce (ICC) Arbitration Rules 2021. The United Nations Convention on the Law of the Sea (UNCLOS) was adopted in 1982. It lays down a comprehensive mechanism for shipping disputes providing the basis for resolving disputes between parties involved in shipping. It creates procedures for resolving disputes through negotiation, mediation, arbitration, and adjudication. In Pakistan, new legislation should establish specialized Admiralty Courts to deal with shipping disputes and arbitrations caring of the shipping trade and its practices. They should also have the authority to conclude the matters promptly, professionally, and economically.
- Maritime disputes between countries or other players over the use, control, or boundaries of the maritime domain can involve several issues, like fishing rights, shipping lanes, and access to offshore resources such as oil and gas. Some of the modes of maritime disputes and potential solutions may include:-
- Territorial Disputes: Territorial disputes arise when the sovereignty over a particular area is claimed by two or more countries. This usually happens when the countries have overlapping maritime boundaries or when one country claims an entire sea or ocean.
- Resource Disputes: Resource disputes occur when two or more countries claim the right to adventure natural resources in a particular maritime area. This can include fishing rights, oil and gas exploration, or mining.
- Navigational Disputes: Navigational disputes ascend when two or more countries dispute the right to use particular shipping lanes or to restrict the passage of ships through certain areas.
- Environmental Disputes: Environmental disputes can arise when two or more countries disagree about the use of a particular maritime area, such as whether to allow oil drilling or other activities that may harm the environment.
Solutions to Maritime Disputes: a. Negotiation is a common means of resolving maritime disputes. it can be conducted bilaterally or multilaterally and may contain the use of a third-party neutral to mediate the discussions.
International Courts can be used to settle maritime disputes. The International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) are two common forums for resolving such disputes.
Diplomacy is also used to prevent or resolve maritime disputes. This can involve the use of back-channel negotiations or the involvement of high-level officials to facilitate discussions and reach a mutually beneficial agreement.
Arbitration involves the use of a third-party neutral to settle a maritime dispute. The arbitrator’s decision is binding on both parties and can help avoid the escalation of the conflict.
Joint Development involves the sharing of resources between two or more countries. This can be used to resolve resource disputes, allowing both parties to benefit from the resources in the disputed maritime area.
Maritime disputes may be difficult; still, a variety of approaches and possible solutions are available to prevent or resolve them. The significance is to participate in open and productive dialogue and to pursue jointly beneficial results that endorse cooperation and stability in the region.
- Maritime arbitration mechanisms play a crucial role in the contemporary age of maritime expansion. As much as maritime trade endures to grow, so does the possibility for disputes to arise. Maritime arbitration acts as a tool for resolving disputes in a judicious manner. Parties are protected from lengthy litigation and the reservations of local courts, which may differ from country to country. Arbitration is perceived to have an advantage over court litigation. These advantages include speed, limited right of appeal (Arbitration Act 1996 ss69(2), 69(3), 70(2) and 70(3), lower cost, the parties may choose their own arbitrators and procedure, (The LMAA has very experienced maritime arbitrators. They offer varying types of procedure depending on the amount at stake—- see the Intermediate Claims Procedure 2017 and the Small Claim Procedure 2017, ease of enforcement of arbitration award in view of the fact that the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958; the “New York Convention” has been widely accepted around the world. (As of 15 February 2020, some 160 States are party to the New York Convention.) and confidentiality. Furthermore, arbitration awards are confidential and cannot be published without the consent of both parties. Enforcement of awards passed in maritime arbitration is generally easier than court judgments, due to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. This provides greater certainty for parties entering into arbitration agreements. The importance of maritime arbitration mechanisms conforms to the contemporary era of maritime expansion.
- Legislation is also required for the blue economy of Pakistan and the region. The sustainable utilization of ocean resources for economic development is the basic concept of the blue economy while ensuring the conservation and protection of marine ecosystems. Pakistan, being a coastal country, has great potential for the blue economy, with a long coastline and a rich diversity of marine resources. However, to realize this potential, there is a need for legislation that promotes sustainable use and management of marine resources.
- Marine Protected Areas (MPAs) Legislation: MPAs are a key tool for protecting marine ecosystems and conserving biodiversity. Pakistan needs legislation that designates areas of the ocean as MPAs and ensures that they are properly managed and enforced.
- Fisheries Legislation: The blue economy relies heavily on fisheries, but overfishing and illegal fishing can quickly deplete fish stocks and harm marine ecosystems. Pakistan needs legislation that regulates fishing practices, such as limits on the catch, gear restrictions, and licensing requirements, to ensure sustainable fisheries.
- Aquaculture Legislation: Aquaculture, or fish farming, is another important aspect of the blue economy. Legislation is needed to regulate the establishment and operation of aquaculture facilities, including the use of feed and chemicals, to prevent pollution and ensure sustainable practices.
- Maritime Infrastructure Legislation: The development of maritime infrastructure, such as ports, marinas, and shipping facilities, is essential for the blue economy. Legislation is needed to regulate the construction and operation of these facilities, including environmental impact assessments, to prevent damage to marine ecosystems.
- Marine Pollution Legislation: Pollution from land-based sources, such as sewage and industrial discharges, and marine-based sources, such as shipping and oil spills, pose a serious threat to marine ecosystems. Legislation is needed to regulate and prevent such pollution.
- International Law: Many of the resources in the ocean, for example, fish stocks and oil and gas reserves, are shared between countries. International law, such as the United Nations Convention on the Law of the Sea, provides a framework for managing these resources and resolving disputes.
Legislation is vital in ensuring the sustainable utilization of ocean resources for economic development. Pakistan and the region need to enact laws that promote sustainable use and management of marine resources, including the establishment of MPAs, regulation of fishing and aquaculture practices, regulation of maritime infrastructure, prevention of marine pollution, and adherence to international law. By doing so, they can unlock the potential of the blue economy while protecting and conserving marine ecosystems for future generations.
- Legislation aspects on issues like Liner shipping, Marine insurance, Shipping investment and Finance strategy.
- Liner Shipping: Liner shipping is regulated by various international conventions, including the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (also known as the “Hamburg Rules”), the International Convention for the Safety of Life at Sea (SOLAS), and the International Maritime Organization’s International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW). Additionally, national laws and regulations may apply to issues such as cabotage (the transport of goods between two ports in the same country), competition law, and environmental regulations.
- Marine Insurance: Marine insurance is governed by various international conventions, including the International Convention on Salvage, the International Convention on Civil Liability for Oil Pollution Damage, and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. National laws and regulations may also apply, particularly in relation to the regulation of insurance companies and the taxation of insurance premiums.
- Shipping Investment: Shipping investment is subject to various laws and regulations, including those relating to corporate governance, securities law, and taxation. In many countries, shipping investment may be subject to special tax regimes designed to encourage investment in the sector. Additionally, investment in shipping may be subject to restrictions on foreign ownership or control in some jurisdictions.
- Finance Strategy: Shipping finance is regulated by various international and national laws and regulations. International conventions that may be relevant include the United Nations Convention on the Law of the Sea, the International Convention on Maritime Liens and Mortgages, and the International Convention on the Arrest of Ships. National laws and regulations may apply to issues such as the registration of ships, the provision of ship financing, and the regulation of financial institutions. Additionally, many jurisdictions may subject shipping finance to anti-money laundering and anti-terrorism financing regulations.
- Legislation aspect of international logistics: International logistics involves the transportation of goods across borders, and as such, it is governed by various national and international laws and regulations. Some of the key legislation aspects of international logistics include International trade agreements that set out the rules for cross-border trade, including tariffs, quotas, and other trade barriers. Customs laws enshrine the import and export of goods, including requirements for documentation, inspections, and fees. Transport regulations cover the transportation of goods by various modes, including air, sea, and land. International logistics also involves compliance with environmental laws, including those related to emissions, waste disposal, and hazardous materials.
Freight rates refer to the charges that shipping companies levy for transporting goods from one location to another. Freight rates can fluctuate depending on a variety of factors, including the type of cargo, the route, and the mode of transportation. Freight byproducts are financial instruments that allow companies to hedge against fluctuations in freight rates. Freight byproducts can take various forms, including futures contracts, options, and exchanges.
International logistics also involves the employment of crew members to operate and maintain transportation vessels. As such, companies involved in international logistics must comply with various laws and regulations related to wages and working conditions for crew members. These laws can include minimum wage requirements, maximum working hours, and safety regulations. Additionally, companies must ensure that vessels are properly maintained to ensure the safety of crew members and the cargo.
Damage to cargo in discharging: When cargo is discharged from a vessel, it is at risk of damage or loss. Companies involved in international logistics must take steps to minimize the risk of damage or loss during the discharging process. This can involve proper handling and storage of cargo, as well as the use of appropriate equipment and personnel.
Liability and compensation for oil pollution: The transportation of oil and other hazardous materials is subject to strict regulations to prevent pollution and protect the environment. If a spill or other incident occurs, companies involved in international logistics may be liable for damages and cleanup costs. International agreements, such as the International Convention on Civil Liability for Oil Pollution Damage, establish rules for liability and compensation in the event of an oil spill.
Salvage security: In the event of an accident or other incident at sea, salvage services may be required to recover damaged vessels or cargo. Salvage security is a financial guarantee that a company will pay for these services if they are needed. International conventions, such as the International Convention on Salvage, establish rules for salvage security and related issues.
- For successful maritime activity, somehow, Lawfare is important in Maritime Domain.
- Lawfare is the strategic use of the legal process to intimidate or hinder an opponent. Law is used against the enemy country by challenging the authority of its military or foreign policy. Law is used as a weapon of war. Lawfare is turning warfare into unfairness.
- The maritime domain means the area of the sea and its associated airspace and sea bed, as well as the shipping, ports, and other activities that take place within it.
- Policy way out and need for varied legislation in view of international shipping laws. These frameworks can help to ensure that shipping companies operate in a responsible and sustainable manner, while also promoting the efficient movement of goods and products around the world. Some key policy initiatives that have been developed in recent years include:
- The International Maritime Organization’s (IMO) regulations on emissions and pollution control: The IMO is a United Nations agency that is responsible for the regulation of shipping activities around the world. In recent years, the IMO has focused on reducing emissions and controlling pollution from ships and has developed a range of regulations and guidelines to support these efforts.
- The United Nations Framework Convention on Climate Change (UNFCCC): The UNFCCC is a global treaty that aims to address the challenge of climate change. It has specific provisions for the shipping industry and calls for the development of policies and measures to reduce greenhouse gas emissions from ships.
- The European Union’s Emissions Trading System (EU ETS): The EU ETS is a market-based system that places a cap on greenhouse gas emissions from industries such as shipping. Companies must purchase allowances to cover their emissions, and can trade these allowances with other companies.
In addition to these global initiatives, there is also a need for varied legislation at the national and regional levels to address specific issues and challenges. For example, some countries may have stricter regulations on the use of certain types of fuels or on the disposal of waste from ships. Others may have specific rules around the treatment of crew members or the transport of hazardous materials. These varied legislations can help to ensure that shipping activities are safe, responsible, and sustainable, while also taking into account local needs and priorities. By developing policy frameworks and varied legislation that promote sustainable and responsible shipping practices, we can help ensure that the industry continues to thrive while protecting the environment and supporting the needs of local communities.
Nisar A. Mujahid Advocate Supreme Court of Pakistan Email: nisar.a.mujahid@gmail.com Mobile: +92334 3637799
